Criminal Justice and Immigration Bill

Part of the debate – in the House of Lords at 6:00 pm on 3rd March 2008.

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Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 6:00 pm, 3rd March 2008

I understand the objective behind the proposed new clause in Amendment No. 134ZB, and there is a more than a modicum of sympathy for it on these Benches. It is designed to increase the maximum penalty for an offence under Section 53 of the Regulation of Investigatory Powers Act 2000—that is, failing to comply with a requirement to disclose protected information or the key to it. The increase in the maximum penalty would apply in the circumstances set out in a new subsection (5C) of Section 53 of RIPA, including when the offender has a previous conviction for possession of an indecent image of a child.

Use by criminals of information technology, such as encryption tools, to conceal evidence of their unlawful conduct to evade detection or prosecution did not materialise as rapidly as was expected back in 2000, when we looked at this issue before, but it is beginning to happen now. That is why the Government concluded that the provisions of Part 3 of RIPA, including Section 53, should be implemented. That happened on 1 October last year, following the affirmative resolution of both Houses approving a code of practice relating to the exercise of the powers and duties in Part 3. That code of practice was published in draft for consultation in 2006; the same consultation also invited comments on amendments to Section 53 along similar lines to this new clause. Only some respondents addressed that issue; most focused on the detail of the code of practice. There was both support for amending Section 53 and responses urging the Government to implement the provisions first and consider any evidence for amending them in the light of experience.

The Government remain very sympathetic to what this amendment seeks to achieve, but we want to assess how the provisions operate in practice. That process is taking place as the first disclosure notices are prepared and served, and the first offences for refusing to comply with a notice are being prosecuted. However, before any prosecution is secured for the existing penalties there will be complex issues to address in court around the presentation of evidence and the explanation of how encryption technologies work in practice.

The Government will consider amending RIPA very much along the lines of this proposed new clause if there is evidence that the two-year penalty is not effective in cases involving, or believed to involve, indecent images of children. We are very much where the noble Lord seeks to take us, but we ought to see what happens in practice so that we have a better feel and understanding for the effect of the original legislation before we proceed any further. We want to see how the law operates before taking that further step. If the noble Lord agrees to withdraw his amendment, we entirely agree to keep the matter under review, because there is not a great deal between us on the matter.